United States District Court, W.D. Kentucky, Owensboro Division
JOHN K. HARDEN PLAINTIFF
OFFICER KEITH HILLMAN DEFENDANT No. 3
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., District Judge United States District Court
matter is before the Court on Defendant's Motion in
Limine. [DN 120]. Fully briefed, this matter is ripe for
decision. For the following reasons, the Motion is DENIED.
early morning hours of August 2, 2014, John Harden entered a
Thorntons, Inc. gas station and attempted to buy beer but was
refused service by the cashier, as he appeared intoxicated.
Defendant Keith Hillman was working inside the store
providing security, outside of his regular hours as a police
officer. Mr. Hillman intervened in the situation and directed
Mr. Harden to leave the store. Mr. Harden did leave but
returned a short time thereafter. Mr. Hillman verbally
directed Mr. Harden to leave the premises, but Mr. Harden
refused. Mr. Hillman then physically removed Mr. Harden from
the store and placed him under arrest.
Harden filed the Complaint in this case on July 8, 2015.
After several rounds of summary judgment motions, the
remaining claims are against Mr. Hillman for excessive force
in violation of 42 U.S.C. § 1983 and assault and
Judge Lindsay issued a Scheduling Order [DN 23] and the
parties filed initial disclosures in accordance with Rule 26.
[DN 25-26]. In Mr. Harden's initial disclosures, he
identified several groups of medical personnel who may
possess relevant information-the hospital personnel at
University of Louisville Hospital, medical personnel at
Veterans Hospital, individuals employed by Louisville EMS,
and Dr. Seline Stephen. [DN 25]. Mr. Harden noted below the
designations that the listed individuals would testify about
his condition and the treatment provided to him following the
alleged assault by Mr. Hillman. [Id. at 2]. Mr.
Harden did not file any designation of expert witnesses and
accompanying reports or disclosures in the timeframe provided
by the Court's Scheduling Order. The case progressed
through pre-trial discovery and motions and is now less than
two months out from the scheduled trial.
parties filed their final witness and exhibit lists, pretrial
memoranda, and proposed voir dire and jury instructions. Mr.
Hillman also filed the instant Motion in Limine. [DN 120]. He
asks the Court to exclude two categories of evidence. First,
Mr. Hillman asks the Court to bar testimony or inquiry into
his tax reporting during his employment with Thornton because
he claims that such evidence is not relevant to the triable
issues. [Id. at 1-3]. Second, Mr. Hillman asks the
Court to bar Mr. Harden from putting forth expert testimony
from any medical personnel because Mr. Harden failed to file
the requisite expert designations and disclosures.
[Id. at 3]. Mr. Harden responded to the Motion in
Limine arguing he did designate the medical personnel as
testifying witnesses, though not as experts, and that inquiry
about his tax reporting is relevant character evidence under
the Federal Rules of Evidence. [DN 121].
mentioned, Mr. Hillman moves to exclude two categories of
evidence. The Court addresses each of Mr. Hillman's
Motion to Exclude Evidence of Failure to Report Income
Hillman first moves the Court to exclude all issues
surrounding the employment relationship between himself and
Thorntons. [DN 120]. Specifically though, Mr. Hillman seeks
the Court's aid in preventing the jury from hearing about
any failure on his behalf to report his income accurately on
tax documents. [Id. at 1-3]. Mr. Hillman argues that
such evidence is not relevant, but that even if the Court
finds that the evidence is relevant, its probative value is
outweighed by unfair prejudice. [Id. at 2]. Mr.
Harden responds that evidence of Mr. Hillman's failure to
accurately report his income on tax documents is relevant if
Mr. Harden testifies. [DN 121 at 2]. Mr. Harden explains that
the untruthful reporting of income is relevant to his
character for untruthfulness and, as such, is proper material
for attacking his credibility on the witness stand.
issue in trial will be whether Mr. Hillman used excessive
force in effectuating the arrest of Mr. Harden and whether
the force used amounts to assault and battery. Assuming Mr.
Hillman takes the stand and testifies, he places his
credibility in issue. On cross-examination of Mr. Hillman,
Mr. Harden is permitted to inquire into specific instances of
Mr. Hillman's conduct if those instances are probative of
Mr. Hillman's character for truthfulness or
untruthfulness. Fed.R.Evid. 608(b)(1). However, extrinsic
evidence of particular instances of conduct, even if
probative of truthfulness or untruthfulness, is inadmissible
under the same rule.
question then is whether a failure to accurately report
income on tax-related documents is conduct probative of
untruthfulness. The Court believe that it is. As such, this
evidence satisfies the low threshold for relevance. If Mr.
Harden has a good-faith basis for believing that Mr. Hillman
inaccurately reported his income on tax documents, such an
inquiry on cross-examination of Mr. Hillman would be
appropriate and permissible under the Federal Rules of